The opinion of the court was delivered by: Judge Joan H. Lefkow
MEMORANDUM OPINION AND ORDER
Plaintiff De Lage Landen Financial Services, Inc. ("DLL"), as the assignee of LBX Company, LLC d/b/a LBX Financial Services ("LBX"), brought suit against defendants M.D.M. Leasing Corp. ("MDM"), Robert M. Ryan, and United Demolition, Inc. ("United") for breach of contract and replevin.*fn1 Before the court is DLL's motion for summary judgment on the replevin count. For the reasons discussed below, DLL's motion [#75] will be denied.
On April 12, 2006, LBX and MDM entered into an agreement ("the Agreement") in which LBX loaned MDM $524,230.00 to purchase certain equipment-specifically, one Link-Belt 460 LX S/N K7J5-9420 Excavator and one Genesis 1000R S/N 10357R Shear, including all additions, attachments, accessions, substitutions, replacements, and proceeds thereto ("the Equipment")-and MDM granted LBX a security interest in that equipment. Under the Agreement, MDM was obligated to pay to LBX sixty consecutive monthly payments, each in the amount of $10,667.17. In order to induce LBX to enter into the Agreement, United executed a corporate guaranty in which it agreed to be unconditionally liable for the debt of MDM. DLL alleges that LBX subsequently assigned all of its rights, title and interest in the Agreement and the Equipment to DLL. DLL also alleges that MDM defaulted under the terms of the agreement by failing and refusing to make payments when they were due. DLL further alleges that it has made demand upon defendants for return of the equipment, but that defendants remain in possession and control of the equipment. MDM denies that the assignment took place, that it defaulted, or that DLL made demand on it.
Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). To determine whether any genuine issue of fact exists, the court must pierce the pleadings and assess the proof as presented in the depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) & advisory committee's notes. The party seeking summary judgment bears the initial burden of proving that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). In response, the non-moving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact is one that might affect the outcome of the suit. Insolia, 216 F.3d at 598--99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986).
DLL argues that it is entitled to summary judgment on its replevin claim because there is no genuine issue of material fact as to whether (1) it has a security interest in the Equipment on which it is entitled to foreclose, or (2) it has satisfied the elements of a claim for replevin. In response, defendants argue that the court must deny summary judgment because there are genuine issues of material fact as to (a) whether DLL has rights in the equipment; (b) whether, prior to the replevin action being filed, DLL made a proper demand upon MDM or United for the return of the Equipment; or (c) whether the excavator (one of the two pieces that comprise the Equipment) is in the possession of the defendants.
A security interest is enforceable against a debtor with respect to the collateral if
(1) value has been given;
(2) the debtor has rights in the collateral or the power to transfer rights in the collateral to a secured party; and
(3) one of the following conditions is met:
(A) the debtor has authenticated a security agreement that provides a description of the collateral . . . . 810 Ill. Comp. Stat. 5/9-203. DLL has presented evidence, unrebutted by defendants, that (1) LBX gave value for its interest in the equipment, (2) MDM, as title holder of the Equipment, granted LBX a first priority security interest therein, and (3) defendants authenticated a security agreement that provides a description of the collateral. DLL has thus shown that, under the Agreement, LBX has an enforceable security interest in the Equipment.
In order to succeed on a cause of action for replevin under Illinois law, the plaintiff must prove that (1) it is the owner of the relevant property or lawfully entitled to the possession thereof; (2) that the property is wrongfully detained by the defendant; and (3) that the property has not been taken for any tax, assessment, or fine levied by virtue of any Illinois law, against the property of such plaintiff, or against him or her individually, nor seized under any lawful process against the goods and chattels of such plaintiff subject to such lawful process, nor held by virtue of any order for replevin against such plaintiff. ...